Can My Children Choose Which Parent They Want to Live With?

 Going through a divorce is a very hard time for most people. Even if the divorce is amicable, which makes it much easier, it still involves dealing with the law, lawyers, and the emotional burden of a relationship that met its end.

If the divorce is not friendly, things get much worse. You will need to try to come to an agreement on how the properties will be divided, sometimes deal with lawyers when the other party does not want to communicate, or it is not safe for you to communicate with them. If you have children, there will be custody agreements to be reached and not always it is easy to do so.

For children, the period when their parents are divorcing can be especially stressful, and the level of anxiety increases with each disagreement their guardians have. The less friendly the divorce, the worst it is for the children.

In order to make things better for them, many people wonder, if the children can choose who they want to live with. How does the law look over this matter? We will try to clarify a few of those questions below.

The Changes in the Divorce Act

First of we need to understand that a child is anyone below 18 years of age to the law. They will only have full say on where they live after they are classed as an adult when they turn 18.

However, there were changes in the Divorce Act which turned effective as of March 1, 2021. One of the most important changes in the act is the view and preferences of a child towards where they want to live and with whom. The changes were done to facilitate and help the family and family justice professionals to achieve a better result while considering the thoughts of the children. It is important to understand that hearing what they have to say is pivotal to making this moment less traumatic.

There is no specific age when children's opinions and views are considered “valid” or not. Each case is evaluated individually, and every child is considered unique. Their age and maturity will be judging factors and the specifics of the divorce, such as the situation they were in before—who they were living with, where and how there were being taken care of— will also come into consideration.

Sometimes asking the child may not be possible or in their best interest. An example of this is when they are too young to fully understand what is happening with them and around them. In those situations, they might need the help of professionals such as a social worker.

How Do I Listen and Involve my Children?

Involving children in this kind of situation must be done with care and patience. Every person involved must avoid making questions that may put the child in the middle of a dispute—such as “who do you want to live with?”. Instead, this conversation must happen on a neutral ground where they feel comfortable sharing their views and opinions. 

Parents may choose to do so outside of court in a mediation, ideally both parents together talking to their children in a amicable and approachable way, or letting their children share their views with a professional such as a psychologist so they can report back.

There are similar ways of involving them even if you do decide to go to Court. A judge may ask to interview the child, or there may be a report on the child’s views based on one or two interviews with the child by a neutral third-party professional. Parenting plans can also include interviews of the children with a mental health professional.

It is also pivotal that parents keep listening to their children even after decisions are made towards their parenting plan and responsibilities. The impacts of a divorce on a child can be severe so making sure they feel comfortable in sharing their perspectives is extremely important.

What Are the Factors the Court will Take into Consideration?

As previously mentioned, the child will not have a full say on where they will live until they are 18 years old and considered an adult. So what factors are taken into consideration together with the child’s point of view?

The Court will look into, first and foremost, the well-being and the best interests of the child and will always try to come up with the best possible solution for them.

The child’s physical, psychological, and emotional needs are one of the most important factors and the judge will consider which parent is more suitable to provide for these needs. Similarly, stability is a crucial factor as the judge will want to see which parent is more likely to cause the least disruption to the child’s life.

Access to healthcare and education is another critical point, the connection to the community and to their school will be considered.

The living arrangements of the parents will be evaluated in order to find if the child will settle into the new ambient without trouble. In a few situations, there may be a history of family violence and criminal behaviour, this will greatly influence the decision of the judge.

Other factors may appear such as an opportunity to learn their heritage, the parent’s ability to be amicable to the other party, and the degree of attachment of the child to the parent.

Hearing the child’s voice is extremely important, and their best interests must always come first in these situations. Divorce by itself is already stressful to all parties, but it can be especially hurtful to a child who is not fully understanding why their parents are moving apart. These are hard adjustments to make and can involve a lot of stress, having a family lawyer calgary with you throughout the process will make it easier and more tolerable as well as will help you defend your and your child’s best interests while dealing with the legalities so you can focus on dealing with your own emotions during this hard time.